Tag Archives: Physicians Desk Reference

Paragraphs six through nine read: “According to a statement of facts agreed upon by the Crown and defence, during the summer of 2008 Francoeur was mistakenly diagnosed with major depression and prescribed an anti-depressant drug known as Effexor. During the next few months, she underwent a radical change.”

“Francoeur actually has bipolar disorder rather than depression ­ and Effexor is known to escalate the ‘manic’ phase experienced by people with bipolarism, which is characterized by extreme feelings of elation, euphoria, racing thoughts, inability to sleep and difficulty appreciating consequences, court heard.”

“Although she had previously been a very light drinker, Francoeur started using alcohol excessively, Piche told court. She spent money in careless ways, went days without sleep and ate irregularly, losing significant amounts of weight. She talked excessively and tookuncharacteristic shortcuts in caring for her daughters, who were five and seven years old.”

“The changes concerned her family members, who sent a letter to Francoeur’s doctor about the situation.”
———————–

SSRIStories.com & Drugawareness.org note: There are now 15 cases on SSRI Stories of women school teachers molesting their minor male students. Bill O’Reilly of the TV talk show, “The Factor” said they are receiving one case report every week. SSRI Stories does not have the resources to investigate these reports in regard to antidepressant use.

SSRIStories.com & Drugawareness.org note: Another additional note: The Physicians Desk Reference states that antidepressants can cause a craving for alcohol and can cause alcohol abuse. (Check out the SSRIs & Alcohol article at www.drugawareness.org for additional information on alcohol cravings.) Also, the liver cannot metabolize the antidepressant and the alcohol simultaneously, thus leading to higher levels of both alcohol and the antidepressantin the human body. http://www.vancouversun.com/news/Teacher+found+criminally+responsible+with+teen+student/4227894/story.html
Effexor & Alcohol: Female teacher found not criminally responsible for sex with male teen student

By Lori Coolican, Postmedia News February 4, 2011

A Saskatchewan teacher has been found not criminally responsible for having sex with a 15-year-old former student.

Photograph by: Joe Raedle, Getty Images
SASKATOON ­ Family and supporters of a teacher from Shell Lake, Sask., sighed with relief in a Saskatoon courtroom Friday after a judge declared her not criminally responsible, due to mental illness, for a sexual relationship with a 15-year-old former student.

Michelle Francoeur was in an extreme “manic state” and lacked the capacity to make rational decisions when she agreed to have sex with the teen boy on several occasions between Sept. 1 and Nov. 20, 2008, Queen’s Bench Justice Duane Koch found.

“The criminal law does not want to punish people who were suffering a mental disorder at the time of the act,” Crown prosecutor Mitch Piche said outside court.

Francoeur was charged with sexual touching, sexual exploitation and sexual assault against the teen, whose identity is protected by a publication ban, after RCMP received a complaint in December 2008.

She was suspended from her job at the Shell Lake school while the case was before the court.

According to a statement of facts agreed upon by the Crown and defence, during the summer of 2008 Francoeur was mistakenly diagnosed with major depression and prescribed an anti-depressant drug known as Effexor. During the next few months, she underwent a radical change.

Francoeur actually has bipolar disorder rather than depression ­ and Effexor is known to escalate the “manic” phase experienced by people with bipolarism, which is characterized by extreme feelings of elation, euphoria, racing thoughts, inability to sleep and difficulty appreciating consequences, court heard.

Although she had previously been a very light drinker, Francoeur started using alcohol excessively, Piche told court. She spent money in careless ways, went days without sleep and ate irregularly, losing significant amounts of weight. She talked excessively and took uncharacteristic shortcuts in caring for her daughters, who were five and seven years old.

The changes concerned her family members, who sent a letter to Francoeur’s doctor about the situation.

The boy had been in Francoeur’s class the previous school year, but no longer attended the school where she taught. They had exchanged text messages once that summer and one night in October he sent her a flirtatious text that resulted in their first sexual encounter, Piche said.

Several more incidents followed, until the boy’s mother discovered the situation.

Defence lawyer Aaron Fox noted Franceour would likely not have been charged with a crime had the incidents happened six months earlier, before changes to the Criminal Code raised the legal age of consent for sexual activity from 14 to 16.

Paragraphs 9 through 12 read: “Like many people he knew, Mr. Goldberg had been on Prozac since college, during the height of its wonder-drug status. He blames the drug, and the emotional numbness he said it induced, for the heavy drinking binges in his 20s. “I couldn’t drink one beer,” he said. ‘It had to be like 10.’ ”

“He quit drinking in 1999 after a family intervention and stopped smoking cigarettes the next year. Then in 2001, he decided to stop taking Prozac after meeting with a naturopath who taught him about natural herbs and the dangers of pesticides.”

“But quitting Prozac wasn’t easy. It precipitated what Mr. Goldberg described as a three-and-a-half-year struggle for survival that included a suicide attempt. During this time, he broke up with his girlfriend, moved back in with his parents and lost nearly a million dollars in Web investments when the dot-com bubble popped.”

“Still, he refused to go back on antidepressants. Adhering to a 100 percent organic diet, he said, helped him turn the corner. So did the 2004 film “What the Bleep Do We Know!?” a New Age documentary about the life-altering powers of positive thinking, which he said he considers the ‘most important movie ever made’.”

Note from SSRIStories.com & Drugawareness.org: Withdrawal can often be more dangerous than continuing on a medication. It is important to withdraw extremely slowly from these antidepressants, usually over a period of a year or more, under the supervision of a qualified specialist. Withdrawal is sometimes more severe than the original symptoms or problems.

Additiional note from SSRIStories.com & Drugawareness.org:The Physicians Desk Reference states that antidepressants can cause a craving for alcohol and can cause alcohol abuse. (Check out the SSRIs & Alcohol article atwww.drugawareness.org for additional information on alcohol cravings.) Also, the liver cannot metabolize the antidepressant and the alcohol simultaneously, thus leading to higher levels of both alcohol and the antidepressantin the human body. The Physicians Desk Reference states that antidepressants can cause a craving for alcohol and can cause alcohol abuse. (Check out the SSRIs & Alcohol article atwww.drugawareness.org for additional information on alcohol cravings.) Also, the liver cannot metabolize the antidepressant and the alcohol simultaneously, thus leading to higher levels of both alcohol and the antidepressant in the human body.

Published: February 2, 2011
THE sidewalks of the East Village were packed with chain smokers and European bar-hoppers, but Max Goldberg, a self-appointed organic-food guru, ducked into Commodities Natural Market, a modern health-food store on First Avenue. He was conducting product research.

He studied a jar of Arrowhead Mills creamy organic peanut butter and remarked on the superior growth conditions of peanuts from New Mexico compared with those from Georgia. Then he pointed to a pack of banana-flavored YoBaby, a brand of organic yogurt for infants. “This is the only Stonyfield product with bilingual labels,” he said, praising the wisdom of appealing to the country’s surging Hispanic market. “I eat it all the time.”

Never mind that Mr. Goldberg has no degree in nutrition or was once a Jack Daniels-swilling party boy whose dinner often consisted of four Gray’s Papaya hot dogs piled with sauerkraut.

But just as big corporations like Wal-Mart have embraced the emerging organic food market, Mr. Goldberg, 41, a former Wall Street investment banker, has discovered a potential career niche as an expert on organic food. Branding himself as a regular guy who took his health into his own hands, Mr. Goldberg now dispenses advice on how to eat and shop organic through his popular Twitter feed and blog, livingmaxwell.com.

For organic naïfs, the site offers answers to common Google searches, like which vegetables and fruits are worth buying organic (answer: conventional produce that is high in chemicals, like peaches and apples). It also features traffic-boosting interviews with organic-food fans like the actress Rachelle Lefevre, who played the evil vampire Victoria from “Twilight,” and humorous asides on his failed attempts to date women who eat nonorganic food.

“I don’t think people know where to begin with organic food in this country,” Mr. Goldberg said over a slice ofpizza covered with uncooked vegetables and a pint of green juice at Caravan of Dreams, a vegan cafe on East Sixth Street. Doe-eyed and boyish in a gray wool sweater and Seven jeans ­ both nonorganic, he confessed ­ he brought to mind a younger, slimmer Matthew Broderick. “They say, ‘Oh, it’s too expensive’ or ‘I don’t know where to get it,’ ” he said. “So I’m trying to teach them by making the information on my blog as accessible as possible.”

As a man who blends his own Brazilian nut milk each morning, Mr. Goldberg gives advice that carries a certain authority. But he is no Dr. Andrew Weil, a fact he’d be the first to admit.

Raised in an affluent suburb of Boston, Mr. Goldberg graduated from Brown University in 1992 and took a job with Prudential Securities. After three years he left to attend Columbia Business School, and he went on to work for various biotech and software companies.

Like many people he knew, Mr. Goldberg had been on Prozac since college, during the height of its wonder-drug status. He blames the drug, and the emotional numbness he said it induced, for the heavy drinking binges in his 20s. “I couldn’t drink one beer,” he said. “It had to be like 10.”

He quit drinking in 1999 after a family intervention and stopped smoking cigarettes the next year. Then in 2001, he decided to stop taking Prozac after meeting with a naturopath who taught him about natural herbs and the dangers of pesticides.

But quitting Prozac wasn’t easy. It precipitated what Mr. Goldberg described as a three-and-a-half-year struggle for survival that included a suicide attempt. During this time, he broke up with his girlfriend, moved back in with his parents and lost nearly a million dollars in Web investments when the dot-com bubble popped.

Still, he refused to go back on antidepressants. Adhering to a 100 percent organic diet, he said, helped him turn the corner. So did the 2004 film “What the Bleep Do We Know!?” a New Age documentary about the life-altering powers of positive thinking, which he said he considers the “most important movie ever made.”

Gradually, his quest to keep toxins out of his body made him want to help others do the same. He started his Web site in 2009, intending it as an organic-food counterpart to green blogs like TreeHugger and Ecofabulous. Skeptical friends from the financial world who ate nonorganic food were his first Web interview subjects.

Since then, Mr. Goldberg has interviewed notable advocates of sustainable food like Joel Salatin and Gary Hirshberg, who were both featured in the documentary “Food, Inc.” To build his audience, he responds to every person who comments and follows 17,576 people on Twitter. “Everyone who follows me I follow back,” he said. “It’s a karma thing.”

His business background still shows through. He admits to harboring dreams of his own Food Network show, or a line of livingmaxwell-brand products, like organic energy bars or a fruit and vegetable wash.

But for now, he’s trying to establish himself among the city’s organic elite, people like Marcus Antebi, who owns the Juice Press, an organic juice bar on East First Street that claims to offer the widest variety of pressed juice formulas in the city. After pizza, Mr. Goldberg swung by the juice bar, where Mr. Antebi greeted him, “ ’Sup Max.”

Mr. Goldberg was pleased. “They sell three of my top five organic trends of 2011 here,” Mr. Goldberg said, referring to a list he created that comprises chia seeds, farro, kale chips, palm sugar and pressed juice. He picked up a container of chia-seed pudding and made his ruling: “This stuff is going to be huge.”

Paragraph eleven reads: “During the interview, Rothwell
at times explained she was really drunk during the incident. However, she also
denied feeling “buzzed,” explaining she could “see straight” and was not falling
down drunk. She also admitted she drinks “a little bit” and takes medicalmarijuana everyday. Rothwell said she takesLexaprofor anxiety and
depression and that she had taken her medication the night of the
incident. Rothwell told police she has anger problems and when her
father died two years ago it “kinda pushed” her over the edge. She admitted to

stabbing a friend Alex Montes in the arm approximately a year and one-half
before when they were drunk and playing around. Rothwell explained she was not
mad at Montes, but he had said ‘you won’t [stab me],’ so she did.
Rothwell agreed there were similarities about the two incidents with Rivas and
Montes because each man had dared her to stab him.”

SSRI Stories
Note: The Physicians Desk Reference states thatantidepressants can cause a craving for alcohol and can cause

alcohol abuse. Also, the liver cannot metabolize the antidepressant and
the alcohol simultaneously, thus leading tohigher levels of both alcohol and
the antidepressant in the human body.

NOT TO BE PUBLISHED IN OFFICIAL
REPORTS

OPINION

O’LEARY, Acting P.
J.

Samantha Elizabeth Rothwell appeals from a judgment after a jury
convicted her of second degree murder and found true she personally used a
deadly or dangerous weapon, a knife, in the commission of the crime. Rothwell
argues her federal constitutional rights were violated when the trial court
refused to instruct the jury to consider evidence of her intoxication in
determining whether she acted with conscious disregard for human life. We
disagree and affirm the judgment.

FACTS[ 1 ]

One afternoon, a group of 10 to 15
friends rented a room at the Hotel Huntington Beach to celebrate Nicole Alcala’s
birthday. Rothwell, one of the invitees, and her friend, Kristina Torres,
arrived around 8:30 p.m. Marc Bellatiere and his girlfriend, Jennifer Mulcahy,
were at the party when Rothwell and Torres arrived. Mulcahy also invited her
brother Ryan Soto. Eighteen-year-old Walter Rivas was also at the
party.

Sometime in the evening, the group went to the beach to meet with
friends. Rothwell chose to stay at the hotel. When the group returned sometime
after midnight, Soto recalled that Rothwell “didn’t seem like herself.” While
some people started getting ready for bed, Bellatiere went outside to the fifth
floor stairwell landing to smoke a cigarette. Mulcahy, Torres, Rothwell, and
Rivas joined him. For the first five to 10 minutes, the mood was fine. However,
the atmosphere changed when Rivas began talking about seeing God the last time
he was in Huntington Beach. Rothwell became upset and ordered Rivas to not “talk
about God. I don’t like hearing about that stuff.” Rivas was taken aback by
Rothwell’s response and asked her why. She replied, “It’s because I’m the
devil,” and demanded Rivas “stop talking about it.” Rivas responded, “I’ll talk
about whatever I want.” Rothwell threatened, “If you don’t stop talking, shut
up, I’ll stab you.” No one in the group took Rothwell’s threat seriously. Rivas
said jokingly, “If you are going to do it, do it,” and continued to talk about
God. Rivas was not threatening, did not make any aggressive moves toward
Rothwell, and made no physical contact with her.

Rothwell walked to the
hotel room and flung the door open. Mulcahy followed and tried to calm her down.
Rivas stayed on the landing talking with Torres. When Rothwell and Mulcahy
entered the hotel room, it was dark and everyone was sleeping. Rothwell went to

the side of the bed where her belongings were located and began digging through
her purse while saying, “@#$% this guy . . . he can’t be talking to me like
this.” Mulcahy tried to grab Rothwell and calm her down, but Rothwell pulled
away and left the room.

Rothwell returned to the stairwell and headed
straight for Rivas. Rothwell swung her closed fist toward Rivas’s neck. Rivas
was substantially taller than Rothwell and struggled against her, but she
stabbed him in the jugular vein and in the back. When Rothwell took her arm
away, Rivas was bleeding profusely and said, “That @#$% fucking stabbed me.
That @#$% fucking stabbed me.” Bellatiere and Torres walked Rivas back to the
hotel room where they had him lay on the bathroom floor.

Rothwell
returned to the room and quickly gathered her things to leave. Soto asked, “Why
did you do it? What happened?” and Rothwell responded, “It wasn’t a big fucking
deal, get over it,” or “Get the @#$% over it. @#$% you,” and left the room
passing a bloody Rivas. Rothwell left bloody fingerprints on the stairwell
railing as she left. Someone called 911.

Bellatiere, Mulcahy, and Soto
left the hotel scared and panicked while Alcala and Torres tended to Rivas. The
group drove down the street and parked. Bellatiere left because he was the only
one in the group who was over 21 years old and had brought alcohol for the
party, which included underage party guests. Bellatiere, Mulcahy, and Soto
called Mulchay’s mother and asked what they should do. As a result of that
conversation, about one hour later, Bellatiere, Mulcahy, and Soto returned to

the hotel. Bellatiere and Mulcahy spoke to police who were at the
hotel.

Rivas died at the hospital. An autopsy determined he bled todeath
as a result of an L-shaped stab wound in the left jugular vein of the neck.
Rivas had a blood alcohol level of .09% before his death. He would have needed
four and one-half to five drinks to reach that level.

Police officers
arrested Rothwell the next day at her apartment in Valencia. Officer Michael
Reilly executed a search warrant and found her purse and backpack. In a small
pocket of her backpack, he found a folding knife with dried blood on it. Dried
blood was also found on her backpack, tennis shoes, and pants. Inside Rothwell’s
purse, Reilly found a McDonald’s receipt from earlier that morning at 2:39 a.m.
for a double cheeseburger and chicken nuggets.

Later that day, officers
interviewed Rothwell at the Huntington Beach Police Department. After waiving
her Miranda[ 2 ] rights, Rothwell told police she consumed
three beers and two or three shots of alcohol and vomited while the others were
at the beach. Rothwell explained that while having a cigarette on the fire
escape, she had a conversation with Mulcahy about how she used to cut herself,
which sparked an argument with Rivas. She recalled Rivas said he “found God in
Huntington Beach,” but said it did not make her upset and she was joking when
she said the devil visited her. She explained Rivas had been drinking and yelled
at her to stab him. In response, she walked back to the hotel room and got her
knife. She denied saying she was going to stab Rivas. When she went back to the
stairwell, Rothwell alleged Rivas was taunting her to “stab me like that.”
Rothwell explained the two were wrestling and she was trying to get away when
she swung three times at his stomach and back and inadvertently stabbed him in
the neck. Rothwell explained Torres was screaming at her to stop, but she was
“drunk” and “pissed off” because Rivas had yelled at her and was grabbing her by
the arms. She told police that after she stabbed Rivas, he said, “You got me,”
and “[She] killed him.” Rothwell admitted seeing Rivas laying on the floor
bleeding profusely but gathered her belongings and left the hotel room because
she was terrified and realized he might die. Rothwell recalled saying, “tell
everybody to go to hell” to Mulcahy’s friend Marshall who had followed her down
the stairs. Rothwell explained that when she left the hotel she drove to

McDonald’s and purchased a double cheeseburger and chicken nuggets. Rothwell
explained she then went home and waited for the police to come and arrest
her.

During the interview, Rothwell at times explained she was really
drunk during the incident. However, she also denied feeling “buzzed,” explaining
she could “see straight” and was not falling down drunk. She also admitted she
drinks “a little bit” and takes medicalmarijuana everyday. Rothwell said she
takes Lexapro for anxiety and depression and that she had taken her medication
the night of the incident. Rothwell told police she has anger problems and when
her father died two years ago it “kinda pushed” her over the edge. She admittedto stabbing a friend Alex Montes in the arm approximately a year and one-half
before when they were drunk and playing around. Rothwell explained she was not
mad at Montes, but he had said “you won’t [stab me],” so she did. Rothwell
agreed there were similarities about the two incidents with Rivas and Montes
because each man had dared her to stab him.

Rothwell cried while she told
police she did not mean to kill Rivas. When she heard about Rivas’s death she
“felt sick” and felt bad for his family. Rothwell did not know what made her do
it and admitted she is “not right.”

An indictment charged Rothwell with

murder in violation of Penal Code section 187, subdivision (a).[ 3 ]
The indictment alleged she personally used a knife, a dangerous and deadly
weapon, in the commission of the crime, pursuant to section 12022, subdivision
(b)(1).

At trial, the prosecutor offered Montes’s testimony. Montes
testified he was a good friend of Rothwell, had known her for three years, and
would see her everyday. Montes explained a conversation he had with Rothwell in
which she told him that she did not believe in God because her father told herto say her prayers and when Rothwell woke up in the morning, her father was
dead. He testified Rothwell would get upset and very emotional if the topic of
God was discussed. He recalled she would say, “Don’t ever bring God up in my
house again. I don’t believe it.” Despite her anger about any discussion of God,
he never saw Rothwell pick up a weapon or heard her say she would stab someone
for talking about God. Montes recalled a night when he and Rothwell were
“playing around” and Rothwell said, “if you make me mad enough I’ll stab you.”
Not taking Rothwell seriously, Montes explained he said jokingly, “you won’t
stab me” and stuck his arm out. In response, she pushed the knife into his arm,
drawing blood. She apologized the next day, and Montes still considers her a
close friend.

Mulcahy also testified for the prosecution. Mulcahy was a
friend of Rothwell from high school and stayed in touch weekly. Mulcahy
testified Rothwell appeared to be fine when she entered the party. She explained
it was the first time Rivas and Rothwell had met. She believed Rothwell was not
religious but was also not an atheist. She also knew Rothwell carried a knife
for protection and could get very angry. Mulcahy testified everyone drank
throughout the night.

The prosecutor also offered the testimony of a
forensic scientist, Annette McCall. McCall testified blood samples gathered from
the scene compared with known samples of Rivas’s DNA revealed Rivas could “not
be eliminated as a source.” She also testified blood samples gathered from
Rothwell’s backpack and knife compared with known samples of Rivas’s DNA
revealed Rivas could “not be eliminated as a source.”

Rothwell offered
Torres’s testimony. Torres explained she and Rothwell were best friends. Torres
said they “probably smoked marijuana” before going to the hotel and she saw
Rothwell smoking marijuana throughout the night. Torres described Rivas as
always having a smile on his face. According to Torres, Rivas and Rothwell were
talking about religion on the landing and Rivas said he saw God on the beach.
Rothwell said, “I’m the devil.” Torres explained Rivas was calm and Rothwell was
yelling and then left briefly. Torres recalled that when Rothwell returned, it
appeared as though she was dancing with Rivas. She eventually realized it looked
confrontational and Rivas was trying to push Rothwell away. Torres testified she
never saw a knife. She saw the blood pouring from Rivas’s neck but did not think
he would die. Torres helped Rivas until the paramedics arrived. She remembered
Rivas saying, “Tell my mother I love her.” She stated Rothwell gathered her
belongings and left the hotel room. Torres thought she heard Rothwell say upon
her departure, “It’s no big deal, fucking deal with it.” Torres said Rivas had
not been confrontational or argumentative with Rothwell that night or in the
past. However, Torres explained Rothwell becomes confrontational whenever the
subject of God comes up. Torres also explained that if someone tells Rothwell
not to do something, she will do it. Furthermore, if someone dares Rothwell to

do something, she will. Torres testified she witnessed the stabbing of Montes by
Rothwell, which was the result of a dare. Torres also testified “`[Rothwell]
goes from zero to maniac . . . if you push her button.'”

Torres admitted
lying to the police to protect Rothwell. She tried to protect Rothwell because
she knew what Rothwell did was wrong and it was no accident. Torres explained
she called Christian Robinson, Rothwell’s boyfriend, and told him that Rothwell
had stabbed someone. Two days later, Torres felt she could no longer protect
Rothwell and typed a statement to police that she both faxed and hand delivered.
In the statement, she explained Rothwell had stabbed Rivas. She also reported
Rothwell said to Rivas, “Oh yeah, oh, you don’t think I won’t. You think I
won’t.”

The trial court instructed the jury on first degree murder and
second degree murder­both on the implied malice and no premeditation
theories­and involuntary manslaughter. Rothwell’s counsel requested CALCRIM
No. 3426, the voluntary intoxication instruction. The prosecutor objected based
on Rothwell’s statement she was not buzzed. The trial court expressed a
preference for CALCRIM No. 625, a voluntary intoxication instruction that
pertains directly to homicide. Defense counsel requested CALCRIM No. 625 be
modified to add malice aforethought, which includes implied malice. The
requested instruction (the Special Instruction) provided: “You may consider
evidence, if any, of the defendant’s voluntary intoxication only in a limited
way. You may consider that evidence only in deciding whether the defendant acted
with an intent to kill, or the defendant acted with deliberation and
premeditation, or acted with malice aforethought. [¶] A person is

voluntarily intoxicated if he or she becomes intoxicated by willingly
using any intoxicating drug, drink, or other substance knowing that it could
produce an intoxicating effect, or willingly assuming the risk of that effect.
[¶] You may not consider evidence of voluntary intoxication for any other
purpose.” The court declined to instruct the jury with the Special Instruction.
Instead, the court instructed the jury with CALCRIM No. 625 without the “or
acted with malice aforethought” language.

The jury convicted Rothwell of
second degree murder and found true the allegations she personally used a deadly
or dangerous weapon, a knife. The trial court sentenced her to prison for a
total term of 16 years to life.

DISCUSSION

Due Process and Fair Trial

Rothwell contends her federal constitutional rights to due process and a
fair trial were violated when the trial court, relying on section 22, refused to
instruct the jury it may consider her voluntary intoxication to negate implied
malice. Specifically, she argues section 22, subdivision (b), is
unconstitutional because it was designed to keep out relevant, exculpatory
evidence and is not a redefinition of the mental state element of the offense.
We disagree.

Section 22, most recently amended in 1995, provides: “(a) No
act committed by a person while in a state of voluntary intoxication is less
criminal by reason of his or her having been in that condition. Evidence of
voluntary intoxication shall not be admitted to negate the capacity to form any
mental states for the crimes charged, including, but not limited to, purpose,
intent, knowledge, premeditation, deliberation, or malice aforethought, with
which the accused committed the act. [¶] (b) Evidence of voluntary intoxication
is admissible solely on the issue of whether or not the defendant actually
formed a required specific intent, or, when charged with murder, whether the
defendant premeditated, deliberated, or harbored express malice
aforethought. [¶] (c) Voluntary intoxication includes the voluntary ingestion,
injection, or taking by any other means of any intoxicating liquor, drug, or
other substance.” (Italics added.)

The Legislature’s 1995 amendment to

section 22 inserted the word “express” before the word “malice” in subdivision
(b). The 1995 amendment was in direct response toPeople v. Whitfield
(1994) 7 Cal.4th 437 (Whitfield). In Whitfield, the California
Supreme Court held evidence of a defendant’s voluntary intoxication was
admissible to negate implied as well as express malice. (Id. at
451.)

The history of the 1995 amendment to section 22 was most recently
addressed in People v. Turk (2008) 164 Cal.App.4th 1361 (Turk). In

Turk, the court concluded, “The legislative history of the amendment
unequivocally indicates that the Legislature intended to legislatively supersedeWhitfield, and make voluntary intoxication inadmissible to negate implied
malice in cases in which a defendant is charged with murder.” (Turk,
supra, 164 Cal.App.4th at pp. 1374-1375.)

Rothwell argues section 22
is unconstitutional after the 1995 amendment because “it created a rule that
keeps out relevant exculpatory evidence by in effect precluding the jury from
considering evidence that could disprove the `conscious disregard for human
life’ element of implied malice second degree murder.” Rothwell relies on

InEgelhoff, a plurality of the court upheld the constitutionality of a
Montana statute providing voluntary intoxication “`may not be taken into
consideration in determining the existence of a mental state which is an element
of [the] offense.'” (Egelhoff, supra, 518 U.S. at p. 57.) The plurality
found no due process violation because the right to have a jury consider
intoxication evidence was not a “fundamental principle of justice.” In
concurrence, Justice Ginsberg drew a distinction between rules designed to keep
out relevant, exculpatory evidence that might negate an essential element of a
crime and violate due process, and rules that redefine the mental state element
of the offense. (Ibid.) Justice Ginsburg viewed the Montana statute as a
redefinition of the offense’s required mental state and therefore excluding
evidence of voluntary intoxication was constitutional. (Id. at pp.
57-59.)

“When a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, `the holding of the
Court may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds . . . .'” (Marks v. United States

In People v. Timms (2007) 151 Cal.App.4th
1292, 1300-1301 (Timms ), the court addressed the identical issue we have
here. The court explained section 22 did not violate a defendant’s due process
rights because section 22, subdivision (b), did not belong to the “prohibited
category of evidentiary rules designed to exclude relevant exculpatory
evidence.” (Timms, supra, 151 Cal.App.4th at p. 1300.) The court
reasoned, “The absence of implied malice from the exceptions listed in
subdivision (b) is itself a policy statement that murder under an implied malice
theory comes within the general rule of subdivision (a) such that voluntary
intoxication can serve no defensive purpose. In other words, section 22,
subdivision (b)[,] is not `merely an evidentiary prescription’; rather, it
`embodies a legislative judgment regarding the circumstances under which
individuals may be held criminally responsible for their actions.’ [Citation.]
In short, voluntary intoxication is irrelevant to proof of the mental state of
implied malice or conscious disregard. Therefore, it does not lessen the
prosecution’s burden of proof or prevent a defendant from presenting all
relevant defensive evidence.” (Id. at pp. 1300-1301)

The

Timms court found illuminating the fact section 22 does not appear in the
Evidence Code, it appears in the Penal Code. (Timms, supra, 151
Cal.App.4th at p. 1300.) Additionally, the court acknowledged the California
Supreme Court’s holding in People v. Atkins (2001) 25 Cal.4th 76, which
rejected a due process challenge to section 22 in the context of the general
intent crime of arson. (Timms, supra, 151 Cal.App.4th at p.
1300.)

With respect to Justice Ginsburg’s concurrence, the court stated
that assuming the concurrence controls, “Justice Ginsberg also stated: `Defining

mens reato eliminate the exculpatory value of voluntary intoxication
does not offend a “fundamental principle of justice,” given the lengthy
common-law tradition, and the adherence of a significant minority of the Statesto that position today. [Citations.]’ [Citation.] Under this rational, the 1995
amendment permissibly could preclude consideration of voluntary intoxication to
negate implied malice and the notion of conscious disregard. Like the Montana
statute, the California Legislature could also exclude evidence of voluntary
intoxication in determination of the requisite mental state.” (Timms,
supra, 151 Cal.App.4th p. 1300.) Therefore, the court concluded section 22
did not infringe defendant’s constitutional rights.

Rothwell also argues
the trial court’s application of section 22 violated her constitutional right to

due process and a fair trial because, “[t]he level of a defendant’s intoxication
is undeniably relevant evidence on the issue of whether he or she consciously
disregarded a risk to human life.” We find People v. Martin (2000) 78
Cal.App.4th 1107 (Martin), instructive.

In Martin, supra,
78 Cal.App.4th at page 1113, the court rejected this constitutional challenge to
section 22. The court explained, “Section 22 states the basic principle of law
recognized in California that a criminal act is not rendered less criminal
because it is committed by a person in a state of voluntary intoxication.” The
court stated section 22 “is closely analogous to [the Legislature’s] abrogation
of the defense of diminished capacity . . . . The 1995 amendment to section 22
results from a legislative determination that, for reasons of public policy,
evidence of voluntary intoxication to negate culpability shall be strictly
limited. We find nothing in the enactment that deprives a defendant of the
ability to present a defense or relieves the People of their burden to prove
every element of the crime charged beyond a reasonable doubt.” (Martin,
supra, 78 Cal.App.4th at p. 1117.)

Equal Protection

In its respondent’s brief,
the Attorney General suggests Rothwell may be asserting an equal protection
claim. In her reply brief, Rothwell raises the equal protection argument for the
first time. We need not consider this argument, because it was made for the
first time in reply without any showing of good cause for failing to raise it in
the opening brief. (Shade Foods, Inc. v. Innovative Products Sales &

DISPOSITION

The judgment is
affirmed.

WE CONCUR.

MOORE, J.

IKOLA, J.
1. `In accord
with the usual rules of appellate review, we state the facts in the light most
favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199,
1206.)
2. Miranda v. Arizona (1966) 384 U.S. 436.
3. All further
statutory references are to the Penal Code

Paragraph nine reads: “Steve Collins, defending, said his client had
expressed “considerable remorse” and added: “He accepts it was completely out
of order. Alcohol played its part and, perhaps, anti-depressants.”

SSRI Stories Note: The Physicians Desk Reference states that
antidepressants can cause a craving for alcohol and can cause alcohol abuse. Also, the
liver cannot metabolize the antidepressant and the alcohol simultaneously,
thus leading to higher levels of both alcohol and the antidepressant in the
human body.

A MAN who savagely attacked a frail, Thatcham kidney transplant patient
has been handed a jail term and banned from the town.

Forty-one-year-old Anthony Coles battered his terrified girlfriend Donna
Morrison as she cowered in the bedroom of her Thatcham home, demanding
hundreds of pounds in cash and threatening to stab her pet dog, Newbury
magistrates heard.

But they suspended the prison sentence last Thursday, April 22, ruling
that Mr Coles would not get the help he needed in jail.

Lauren Murphy, prosecuting, said: “The victim, who was subsequently rated
as being a high risk domestic violence victim, is a petite lady who has
health problems and has had two kidney transplants.

“The pair had been in a six-year relationship and he had recently moved
into her home. One evening he came in and had been drinking. She made his tea
but he didn’t want any. He became insulting, saying she wasn’t really ill
and that he didn’t want to be in the relationship any more.

“He asked for £10, which she gave him and she went to bed at 7.30pm, not
wanting to have an argument.”

Mr Coles went out and, upon his return, the court heard, began making
increasing demands for cash until he wanted £500.

Miss Murphy went on: “When she said she wouldn’t be able to get the money
he knocked her to the floor, grabbed her hair and dragged her along the
bedroom floor saying that, if she didn’t get him the money he would take her
dog Barney to the woods and stab him.

“She was petrified and afraid that if she called out she would suffer
serious harm. She told him she would get his money and he warned that if she
called the police he would kill her sister and make her life a misery.”

Miss Morrison made a show of going to the Thatcham Co-Op with her bank
card but then called police, the court heard.

Miss Murphy said: “Officers found her tearful and trembling and she kept
repeating: ‘He is going to kill me.’ She showed officers a large clump of
hair that had ben torn out by being dragged. Mr Coles told officers that he
had just flipped.”

Mr Coles, who now lives in Stevenage, Hertfordshire, admitted assault
causing actual bodily harm on March 4 this year.

Steve Collins, defending, said his client had expressed “considerable
remorse” and added: “He accepts it was completely out of order. Alcohol played
its part and, perhaps, anti-depressants.

“He had no money because his money was paid into her bank account – hence,
he wanted money to get away.”

Mr Collins asked magistrates to read pre-sentence reports and alluded to
on-going problems his client had with regard to relationships, adding: “He
knows you may send him to prison today and he has no problem with that. But
one day he is going to have to address these problems and he won’t be able
to do that in jail.”

Magistrates imposed a four-month jail term, but agreed to suspend it for
two years and ordered Mr Coles to undertake a domestic violence programme.

He was also banned from entering Thatcham for two years and ordered to pay
Miss Morrison £100 compensation.

Paragraph 10 reads: “Garda Noonan agreed with Mr Orange that Mulligan had
been on antidepressants at the time and the medication did not mix well
with the alcohol he had taken that night.”

SSRI Stories Note: The Physicians Desk Reference states that
antidepressants can cause a craving for alcohol and can cause alcohol abuse. Also, the
liver cannot metabolize the antidepressant and the alcohol simultaneously,
thus leading to higher levels of both alcohol and the antidepressant in the
human body.

A man who was so frustrated with juvenile delinquency in his neighbourhood
that he tried to scare off some youths with a chainsaw has been ordered to
carry out work in the community in lieu of a jail sentence.

Patrick Mulligan (aged 50), a bus driver for children with special needs,
was still holding the running chainsaw in his driveway when gardaí arrived
and he waved it in the direction of garda Colin Noonan and two of his
colleagues.

Mulligan of Whitechurch Avenue, Ballyboden, pleaded guilty at Dublin
Circuit Criminal Court to possession of the chainsaw under the Firearms and
Offensive Weapons Act at his home on October 4, 2008. He had no previous
convictions.

Garda Noonan told Ms Una Tighe BL, prosecuting, that it took a short time
to convince Mulligan to put the tool down while his wife stood in the couple
’s doorway in a distressed state.

He said it was clear that the accused had been drinking. Mulligan told
gardaí that he had number of problems with some of the people in his
neighbourhood and was concerned for his property and the bus he drove for work.

He told gardaí later that his wife could not walk down their street
without “being hassled”. He said some youths had gathered outside his house that
night and were interfering with his bus and he had brought out the
chainsaw as tactic to scare them off.

He said he was shocked when gardaí arrived and that was why it took him
some time to put the tool down.

Garda Noonan agreed with Mr Garnet Orange BL, defending, that his client
was very apologetic to the gardaí during interview and co-operated with
their investigation.

He accepted that Mulligan’s wife had called the gardaí because she was
concerned for her husband before he further accepted that it had not been an
incident of “domestic violence”.

Garda Noonan agreed with Mr Orange that Mulligan had been on
antidepressants at the time and the medication did not mix well with the alcohol he had
taken that night.

Mr Orange told garda Noonan that his client wanted to express his
apologies for “any action that he engaged in that might have been perceived as a
threat to you and or your colleagues”.

He told judge Katherine Delahunt that there had been a problem with “
juvenile delinquency” in the area, involving “keying of cars and damage to both
vehicles and property”.

He said his client had been concerned for his and his family’s personal
safety and that of his property but added that Mulligan had “completely lost
the head and acted in an irrational manner”.

Mulligan had €500 in court to offer the gardaí as a token of his remorse
which garda Noonan said he would pass onto the Garda Benevolent Fund.

Judge Delahunt ordered Mulligan to carry out 100 hours community service
in lieu of a two-year sentence after telling him that had not been for the “
very fair evidence” of garda Noonan, and the manner in which he had met the
case, he would be going to jail.

“Garda Noonan has underplayed what must have been a very terrifying
experience for both him and his colleagues,” Judge Delahunt said before she noted
that she had also taken into account that Mulligan was 50 years old and
had not come to garda attention.

She said she was also taking into consideration the fact he may lose his
job due to his conviction and said that in itself would be “a very
significant penalty to suffer”.

Paragraph seven reads: “Supt Martin Sammut, who was an inspector at the
time, testified that in his statement to the police, Mr Attard acknowledged
stabbing the officer and expressed regret. Mr Attard also said that he was
drunk – even though he was not supposed to drink because he was on
anti-depressants – and that he had no intention of hurting the constable. At the
time, Mr Attard said that he was very nervous, as his underage daughter was
pregnant.”

SSRI Stories Note: The Physicians Desk Reference states that
antidepressants can cause a craving for alcohol and can cause alcohol abuse. Also, the
liver cannot metabolize the antidepressant and the alcohol

A man charged with the attempted murder of a policeman told police that he
was drunk and on medication when the incident occurred, and did not intend
to hurt the officer, a jury heard on Monday.

Kevin Attard, a 39-year-old Kalkara resident, started undergoing trial by
jury after being charged with the attempted murder of PC Jonathan Farrugia
in the small hours of April 26, 2003, at the St Julians police station.

According to the prosecution, Mr Attard reacted violently when he was
refused entry at the Fuego nightclub in Paceville at around 0320h. Security
guards called the police for assistance, but Mr Attard punched PC Andrew St
John when he intervened, leading to his arrest.

He was taken to the police station, where PC Farrugia was on his own since
his colleagues were out on assignment.

Mr Attard asked for permission to smoke, permission that was granted on
condition that he remained at the station, but he nevertheless attempted to
leave twice. On the second attempt, PC Farrugia ordered Mr Attard to get
back inside, leading to an altercation in which the accused brought out a
3-inch pen knife and stabbed the police officer in the belly.

Two police officers entered the station soon after, and apprehended Mr
Attard. Mr Farrugia was taken to St Luke’s Hospital, where his injury was
certified not to be life-threatening, and was released on the following day.

Supt Martin Sammut, who was an inspector at the time, testified that in
his statement to the police, Mr Attard acknowledged stabbing the officer and
expressed regret. Mr Attard also said that he was drunk – even though he
was not supposed to drink because he was on anti-depressants – and that he
had no intention of hurting the constable. At the time, Mr Attard said that
he was very nervous, as his underage daughter was pregnant.

The accused insisted that PC Farrugia was not alone in the station at the
time, and said that he had just purchased the knife in his home town.

Mr Farrugia testified that when the accused arrived at the station, he
appeared calm, but suddenly attacked him. He said that he was not aware that
he had been stabbed, and thought the accused had grabbed a set of keys and
punched him.

He said that he started shouting for help, and a police officer soon
arrived to help him escort Mr Attard to the station cell. It was this police
officer who informed him that he had been attacked with a knife, the constable
said in Court.

Mr Attard was also charged with slightly injuring PC St John, damaging PC
Farrugia’s uniform, the unlawful possession of a knife and with assaulting
police officers with the aim of preventing them from carrying out their
duty.

The uniform and the knife were presented as evidence to the jury, as was a
blood-stained shirt.

Lawyer Lara Lanfranco is prosecuting on behalf of the Attorney General’s
Office, while lawyers José Herrera and Veronique Dalli are representing Mr
Attard.

Paragraph four reads: “Michael Clare, defending, said Roberts was sorry
for what had happened, that he suffered from depression, was on medication
and could not remember anything when he drank alcohol.”

SSRI Stories Note: The Physicians Desk Reference states that
antidepressants can cause a craving for alcohol and can cause alcohol abuse. Also, the
liver cannot metabolize the antidepressant and the alcohol simultaneously,
thus leading to higher levels of both alcohol and the antidepressant in the
human body.

A 24-year-old Diss man has been given a suspended prison sentence and
ordered to carry out 100 hours of unpaid work following an assault at a pub.

At a hearing at Norwich Crown Court on Wednesday, Paul Roberts, of Paine
Close, admitted assaulting 18-year-old William Webster – knocking out two of
his front teeth at The Crown pub, St Nicholas Street, in the early hours
of Christmas Day last year.

The court was told that Roberts had been given a community order for
affray in October last year, following an incident at The Greyhound pub, in
which the victim suffered a deep cut on his nose.

Michael Clare, defending, said Roberts was sorry for what had happened,
that he suffered from depression, was on medication and could not remember
anything when he drank alcohol.

Malcolm Robins, prosecuting, said Roberts and Mr Webster knew each other
and Mr Webster accepted he may have said something which could have upset
Roberts, who then elbowed him in his mouth.

But he said Mr Webster did not retaliate and other people in the pub were
trying to calm Roberts down.

Roberts was given a 30-week prison sentence, suspended for two years and a
one-year supervision order, under which he must attend an anger management
programme for up to six months.

Roberts was also ordered to do 100 hours of unpaid work for the community
and pay £1,000 compensation to Mr Webster.

Judge Alasdair Darroch told Roberts: “I think the public will be better
protected if you go on a course rather than me sending you to prison.”

Paragraphs two and three read: “The suspect is in jail,
accused of killing Bob Childress who was simply on his way to work.
Jacques Norton faces a charge of felony DUI causing death. The charge accuses him of being under the influence of drugs with
enhancement of alcohol.”

“Police believe Norton got carried
away with the prescription anti-depressant Celexa and mixed that, with a
handful of mixed drinks. He was reportedly so out of it, police had to
stop a field sobriety test for his own safety.”

SSRI Stories Note:

The Physicians Desk Reference states that antidepressants can cause a craving for alcohol andalcohol abuse. Also, the liver cannot
metabolize the antidepressant and the alcohol simultaneously, thus leading
to higher levels of both alcohol and the antidepressant in the human
body.

Police say suspect in deadly DUI crash didn’t know what month it
was

Las Vegas, NV (KTNV) – A man is dead after being killed by a
suspected intoxicated driver on Easter morning. An arrest reports says the
22-year-old suspect had been out at a club earlier in the night, drinkingalcohol and popping pills.

The suspect is in jail, accused of killing
Bob Childress who was simply on his way to work. Jacques Norton faces a
charge of felony DUI causing death. The charge accuses him of being under the
influence of drugs with enhancement of alcohol.

Police believe Norton got
carried away with the prescription anti-depressant Celexa and mixed that, with a
handful of mixed drinks. He was reportedly so out of it, police had to stop a
field sobriety test for his own safety.

“I still feel like he’s going to
come and walk through the door,” explained Dawn Miller, who was Childress’
roommate.

Childress was on his way to work as a bus driver with Coach
America charter bus service when he lost his life. He was driving northbound on
Main when a police report says, Norton did not stop for a red light and hit
Childress’ driver side. The impact sent him flying almost 150 feet into the
eastbound lanes of Charleston.

“I don’t want to be angry. I’m very angry
though,” said Miller.

An arrest report says Norton admitted to taking
five 15 mg pills of Celexa and to drinking four to five drinks of vodka tonic at
the club.

When asked what the date was Norton thought it was May
1st, when it was April 4th.

“He has the rest of his life and we have the
rest of our lives without Bob,” said Miller.

According to the report
Norton had no idea he hit another vehicle near the downtown intersection. He
reportedly told police he hit a fire hydrant and wanted to know how bad his car
was.

“This was not a thing, it was a person that somebody loved. He was
always with us. He can never replaced. He tore apart my family” said Ariell
Miller, who also lived with Childress.

On top of not knowing, what month
it was and not knowing that he had hit somebody Norton reportedly also had no
clue what street he was on at the time of the accident. A preliminary
breathalyzer test showed his alcohol level was nearly twice the legal limit.
Further blood tests are pending.

Childress is expected to be cremated in
the days to come. His roommates describe him as a hard-working, low-key
gentleman who was always willing to lend a helping hand to others.

Last
year, 84 people in Nevada were killed in drunk driving accidents. 61 of those
victims died in Clark County.

Stay with Action News for new
developments on this accident investigation.

The court was told that on March 7 this year
Todd was at the festival between 6.30pm and 7.30pm when he became involved in a
verbal incident in a bar with a man not known to him.
Todd bumped into the
man several times in a bar and was asked to move away before the victim
requested security personnel to assist.

Todd moved away a few paces,
made some derogatory comments, then came up behind the victim and grabbed his
testicles with significant force.

“You’ve got no balls, mate,” Todd told
the victim and there was a short struggle before he released the victim’s
testicles.

Todd was kicked out of the venue and told not to come back.

He told police during an interview he had drunk a bottle of wine and had
little recollection of the incident.

At the time Todd was suffering
anxiety and depression and could have suffered a blackout.

The victim
suffered pain for about 12 hours and Todd wrote a letter of apology which was
passed on through police.

Defence counsel Danielle Svede said Todd had
no prior convictions, glowing references and had not drunk alcohol since the
incident.

She said the incident had a huge impact on her client’s
marriage, his wife was left shaken and Todd had consumed alcohol while on
medication and with an empty stomach that night.

Ms Svede said her client
was on 12 months leave from the air force, had undertaken anger management and
knew his behaviour was inappropriate.

Magistrate Jonathan Klestadt said
there should be no doubt in anyone’s mind that the defendant’s actions were
appalling.

He said the folk festival was not a place to be confronted by
drunken, boorish behaviour and assaulted.

Paragraphs 36 through 38 read: “His doctors hadprescribedLexaprofor his depression and Joyce blames the
medication for his high and low mood swings. Patients on Lexapro report mood
swings and paranoia among a host of side effects, so it is advised patients
gradually withdraw from the drug.””

“His
doctor had planned to take him off the drug, but she says her husband’s
medical surveillance fell between the cracks when the doctor left to work
somewhere else.”

In the meantime, while in Ohio, Christie was planning to
paint the garage floor and take apart, clean, and re-assemble lawn furniture. He
had become more outgoing and talkative, she said. When he suddenly left
to go to Fort Myers to visit his brother, he went to a mall and opened
a department store account, things he hadn’t done
before.

Paragraphs ten trhough twelve from the end read:

“Christie ended up at a North Fort Myers hotel. He was initially arrested for
disorderly intoxication and causing a disturbance. The
counter woman at Arby’s gave Nick a free coffee because she thought he had
Alzheimer’s disease.

Joyce says her husband couldn’t
remember her number, or his son’s. Two days later on March 27, he was
arrested again for trespassing.

This time when officers took her husband
into custody, Joyce says they locked his medications in his truck and never
retrieved them.

Drugawareness & SSRI Stories note:Amnesia is listed as a frequent side effect to
antidepressants in the Physicians Desk Reference. Alcohol cravings are also
known to be caused by antidepressants, as is mania and
violence.

The widow of an Ohio man who died in police custody in Fort
Myers, Florida last March, will file a federal lawsuit for violating her
husband’s constitutional rights by failing to recognize that he was mentally
ill.

Joyce Christie, of Girard, Ohio, and her son, plan to file the
action against the Lee County Sheriff’s Office and Prison Health Services (PHS),
the private company that oversees medical care for the jail, which had taken
custody of Nicholas Christie for trespassing.

Her attorney, Nick DiCello
(IB member), of the Cleveland firm of Spangenberg, Shibley & Liber LLP, says
his firm has filed the notices required under Florida state law of an intention
to sue.

“Letters of intent to file a civil lawsuit for medical
malpractice, wrongful death, and civil rights violations, negligence, pain and
suffering have been sent,” he tells IB
News.

Christie, 62, was arrested last March after traveling from Ohio
to Fort Myers while suffering, what his widow describes as a mental breakdown
[manic reaction to medication]. Arrested twice for disorderly conduct and
trespassing, Nick Christie was peppersprayed ten times over the course of his
43-hour custody.

Suffering from emphysema, COPD, back and heart problems,
the jail staff said his medical files were not available or immediately sought
at the time of his arrest. But DiCello says Christie gave his medical history
and list of medications to the jail days earlier during his first encounter with
law enforcement.

His medication list was found in the back pocket of his
pants when Christie’s personal effects were returned to his
widow.

What Happened To Nick
Christie?

Sometime between the time he was arrested on March 27, 2009
around 2:00 p.m., and March 31 at1:23 p.m. when he was pronounced dead, Christie
had been sprayed with ten blasts of pepper spray, also known as OC (Oleo-resin
Capsicum), which is a derivative of cayenne pepper.

The medical examiner
has ruled his death a homicide.

On January 6, the Lee County State
Attorney’s office mimicked a lengthy investigation by the Lee County Sheriff’s
Office, clearing the officers of any wrongdoing in the death.

Assistant
State Attorney Dean Plattner and Chief Investigator Kevin Smith found the
jailers did not break policy guidelines. A separate internal review of policy
was not conducted and the five corrections officers have remained on the
job.

“My blood is boiling,” Joyce Christie, 59, told the News-Press. “I knew it was going to end this way
because the corrections officers were never taken off their jobs during the
investigation.”

A Failure to
Indict

Assistant State Attorney Dean Plattner says in his memo that
in order to prove manslaughter, the office would have to prove someone showed a
“reckless disregard for human life” to the extent that they should have known it
would likely cause death or great bodily injury.

“The facts of the case
do not support this level of proof,” says the office.

Attorney DiCello
says he is shocked that the state attorney didn’t come to the conclusion there
was a crime.

“All he needs to come to a conclusion that there was
probable cause there was a crime. The local community should have been given the
opportunity to indict. They weren’t given that opportunity,” he
says.

DiCello says despite the state attorney’s conclusion, the federal
case has a different standard of review.

“They have to prove beyond a
reasonable doubt there was some type of criminal intent. We have to prove it
fell beneath the standard of care and these officers knew they were violating
this man’s constitutional rights.”

DiCello says strapping an obese,
62-year-old with a heart condition and COPD to a restraining chair, pepper

spraying him and not allowing him water to wash off should qualify.

“Case
law as a matter of law defines that conduct as a violation of constitutional
rights and affords it no protection under the law,” he says.

The standard
of care is established by the county and Prison Health Services, under contract
with Lee County for $9 million annually, one of 160 contracts PHS holds
nationwide.

Lee County, Sgt. David Valez, tells IB News the
company is NCCHC accredited and “they must maintain that high standard.” There
is no independent review by the county.

Under the contract, PHS is
responsible for conducting a medical evaluation of everyone coming into the
system.

Never Saw A Doctor

His jailers
say Nicholas Christie was combative, despite the fact that he was restrained in
a chair so he allegedly wouldn’t spit at his jailers.

But three inmates
who shared Christie’s cell block told the Fort Meyers News-Press that they thought the use
of pepper spray was excessive and that deputies ignored the victim’s pleas for
help.

“While he was sitting in the chair, they sprayed him two more
times,” said Ken Cutler. His whole head was turning purple and almost blue,” he
says, “He was gasping.”

The other inmates say the pepper spray was so
intense they were gagging in the cell block.

“He was constantly telling
them I can’t breathe and I got a heart condition,” he says.

Dr. Robert
Pfalzgraf, deputy chief medical examiner, concluded that stress caused by
restraint and pepper spray were irritants and stressors to his heart. He says
that 99 percent of the time those sprayed do not die. Christie was the 1
percent.

A homicide does not
necessarily mean that the death was a criminal act only that it was caused by a
person or persons.

DiCello says take a look at Pepper Spray on YouTube videos to see it can down
someone for 40 minutes, even if it is washed off.

“You’ll see Marines
crying, now imagine beingsprayed ten times, you’re obese, have COPD and having
a manic episode. Ten times and the last time not washed down for a half hour
strapped down so you can’t rub his eyes.”

Mental
Health Issues

Joyce Christie told IB News last June that her
husband had started showing signs of mania. He had recently retired and thought
he was going to go fishing, she said, but diverticulitis shut down his colon,
then he went into a depression afterbeing hospitalized for COPD ( chronic obstructive pulmonary disease).

Christie had quit smoking years ago, but the former boilermaker worked
around asbestos and nuclear power plants, she says.

His doctors had
prescribed Lexapro for his depression and Joyce blames the
medication for his high and low mood swings. Patients on Lexapro report

His doctor had planned to take him off
the drug, but she says her husband’s medical surveillance fell between the
cracks when the doctor left to work somewhere else.

In the meantime,
while in Ohio, Christie was planning to paint the garage floor and take apart,
clean, and re-assemble lawn furniture. He had become more outgoing and
talkative, she said. When he suddenly left to go to Fort Myers to visit his
brother, he went to a mall and opened a department store account, things he
hadn’t done before.

Joyce Christie was so concerned she says she
contacted the Lee County Sheriff’s office and issue a welfare BOLO (Be On The
Lookout). Ms. Christie even had the sheriff of her home town contact Lee County
to stress the seriousness of her husband’s condition and the fact that he needed
to take his medication.

“He begged them to take Nick to the hospital.
They said he’s having a good time, he needs a few days away. All they had to do
was say ‘Let us talk to your doctor to confirm.’ They didn’t do it. Captain
Begowski told the officer, ‘If you don’t take him now, I’m going to tell you,
you’re going to be dealing with him in a couple of hours.’”

That forecast
proved true.

Christie ended up at a North Fort Myers hotel. He was
initially arrested for disorderly intoxication and causing a disturbance. The
counter woman at Arby’s gave Nick a free coffee because she thought he had
Alzheimer’s disease.

Joyce says her husband couldn’t remember her number,
or his son’s. Two days later on March 27, he was arrested again for
trespassing.

This time when officers took her husband into custody, Joyce
says they locked his medications in his truck and never retrieved
them.

Joyce frantically flew to Fort Myers March 28, but police would not
let her see Nick. She says they wouldn’t even tell him she was there. Finally,
an officer suggested she could bond him out of police custody.

When she
finally was allowed to see her husband it was too late.

He had been taken
by ambulance to Gulf Coast Hospital where Joyce says Nick’s eyes were taped shut
and he had 40 tubes taped to his body. Doctors told her he had a 10 percent
chance to live. The nurses told her when he was brought in naked that he had so
much pepper spray on him doctors had to change their gloves as they became
saturated with the orange spray.

No one in the sheriff’s office had
contacted her, and until he arrived at the hospital, Nick Christie had never
seen a doctor. Someone in the hospital, shocked by his condition, suggested she
contact an attorney.

“Nick had a life he was somebody my husband, a
father to my son. He’s somebody I miss very much. It shouldn’t have happened. He
should be here. Three weeks later I get his ashes back from Florida in a mail
truck. My husband, he was somebody, he wasn’t just a nobody,” Joyce Christie
says.

Attorney Nick DiCello says the state attorney’s report clearing the
officers will not hurt the federal case. The fact that Christie was sprayed at
least once afterbeing restrained in a chair with a hood over his head violates
any qualified immunity defense the county and Prison Health Services may
claim.

Besides a violation of the law, DiCello is concerned about the
violation of another human being.

“Humanity has failed here. And now they
aren’t going to address the failure. Us as a people, we need to recognize we’ve
all failed and make it right, not ‘Let’s just move on from this failure.’ People
shouldn’t do this to people. Nothing could warrant the treatment and death this
guy experienced.

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"I was stunned at the amount of research Ann B. Tracy has done on this subject. Few researchers go to as much trouble agressively gathering information on the adverse reactions of Prozac, Zoloft and other SSRIs."
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